THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GUILFORD, Defendant and Appellant.
No. C073329
Third Dist.
July 31, 2014
228 Cal.App.4th 651
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
DUARTE, J.—Defendant Michael Guilford appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012 (the Act, enacted by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012);
Although the Act contains some provisions affecting sentencing taking place after its operative date, as relevant to this appeal, the Act also sets forth a mechanism for relief for some existing three strikes inmates. That part of the Act creates a two-step process. First, the trial court determines whether a defendant is qualified or disqualified from seeking a recall of sentence. Second, if and only if a defendant is found to be qualified, the trial court conducts a hearing, and then applies certain standards to determine whether the defendant‘s sentence should be lessened. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292–1294 [155 Cal.Rptr.3d 856] (Kaulick); People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168 [151 Cal.Rptr.3d 901] (Yearwood).) This appeal involves only the first step.
Defendant contends (1) the trial court improperly considered our prior opinion on direct appeal from defendant‘s convictions in finding him ineligible for resentencing under the Act, (2) our prior opinion does not show he was ineligible under the Act, and (3) he was еntitled to have a jury determine his eligibility under the Act. He folds into his first claim the underdeveloped argument that pleading and proof were required to support the trial court‘s disqualifying determination. As we will explain, we disagree and affirm the trial court‘s order finding defendant ineligible for resentencing under the Act.
BACKGROUND
Defendant‘s petition alleged he was convicted of spousal abuse (
The Act makes ineligible for resentencing those persons who, inter alia, “[d]uring the commission of the current offense ... intended to cause great bodily injury to another person.” (
DISCUSSION
I
Use of Prior Opinion to Determine Eligibility
Defendant cоntends it was improper for the trial court to consider the facts stated in our prior opinion on direct appeal to determine whether or not he had the intent to commit great bodily injury in committing the current offense. He claims that the trial court‘s consideration of our opinion denied him due process because it denied him his right to notice and the opportunity to be heard as to the facts set forth in the opinion, as “there was no finding that was pled and proven that supported” the court‘s finding of the requisite intent.
A. The Act Generally
The Act amended sections
“Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. [Citations.] The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sеntenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety.” (Yearwood, supra, 213 Cal.App.4th at pp. 167–168.)
“Thus, there are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the
In approving the Act, the electorate declared that its purpose was both to prevent the early release of dangerous criminals and to relieve prison overcrowding by allowing low-risk, nonviolent inmates sеrving life sentences for petty crimes, to receive shorter sentences, thereby saving money while protecting public safety. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.) The electorate also mandated that the Act be liberally construed to effectuate the protection of the health, safety, and welfare of the People. (Voter Information Guide, supra, text of Prop. 36, § 7, p. 110.) Such findings in voter ballot pamphlets may be used to illuminate ambiguоus or uncertain provisions of an enactment. (See Yearwood, supra, 213 Cal.App.4th at p. 171.)
B. Pleading and Proof
The Act requires pleading and proof when ineligibility for lenient treatment under the Act applies prospectively, that is, to persons currently charged with a three strikes offense that is not itself defined as serious or violent. (
“An inmate is eligible for resentencing if:
“(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
“(2) The inmate‘s current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.
“(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (
Nowhere in the resentencing provisions of the Act—section
Instead, section
In this case, the trial court determined the current offense fell within the bar of section
Because the electorate required pleading and proof of these disqualifying facts in the prospective part of the Act, but not the retrospective part, we presume the intention was to dispense with a pleading and proof requirement in the latter case. “We presume the [electorate] intended everything in a statutory scheme, and we do not read statutes to omit expressed language or to include omitted language. [Citation.] When ’ ” ‘a statute on a particular subject omits a particular provision, the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision is not applicable to the statute from which it was omitted.’ ” ’ ” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850 [60 Cal.Rptr.3d 486].)
Defendant nonetheless contends that because the resentencing portion of the Act cross-references the prospective portions of the Act, it necessarily incorporated the pleading and proof requirement in the prospective portions. This clаim has some superficial appeal. (Accord, Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 58–59 [195 P.2d 1] [where a statute references another statute, it presumably references it as it existed at the time of the reference, and not as it may be amended later].) However, on closer inspection, this contention is not persuasive.4
If the electorate meant to impose a pleading and proof requirement, they would have done so in clear terms, but instead directed trial courts to find ineligible those persons who “[d]uring the commission of the current offense, ... used a firearm, [were] armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (
Again, in the portion of the Act dealing with prospective application of the reformed three strikes law to new cases, the statute requires the prosecution to plead and prove any factor which would qualify the defendant for a life-term sentence, including, where appropriate, that the defendant intended
For this reason, we agree with the court in Kaulick, supra, 215 Cal.App.4th 1279. “Had the drafters of the Act intended [defendant‘s] interpretation, the retrospective part of the Act would have provided that if the petitioner were eligible for resentencing, the sentence would be recalled and the petitioner sentenced to a second strike sentence ‘unless the prosecution pleads and proves’ that such a sentence would constitute an unreasonable risk of danger to the community. They did not do so.” (Id. at p. 1303, fn. 26.)
This quotation from Kaulick directly addresses the second step in a recall of sentencing case, that is, whether a person statutorily eligible to petition for retrospective relief is found to be too dangerous to release. (See Kaulick, supra, 215 Cal.App.4th at pp. 1302–1303.) However, in our view Kaulick‘s reasoning applies equally to all of the retrospective parts of the Act. Our conclusion is bolstered by People v. White (2014) 223 Cal.App.4th 512 [167 Cal.Rptr.3d 328]. White had been convicted of possession of a firearm by a felon, which is not a disqualifying fact, that is, it had never been pled or proven that he was armed with a firearm, only that he was in possession of a firearm. (Id. at pp. 518–519.) However, White held that it was appropriate in considering White‘s reсall petition for the trial court to consider the facts of the crime, as shown by the record, to disqualify him, following the logic of Kaulick: The requirement of pleading and proof for prospective application of the Act, and the absence of such requirement for retrospective application, indicates that pleading and proof is not a requirement for the latter. (White, at pp. 524–527.) We agree with this interpretation.
C. Use of Prior Opinion to Establish Ineligibility
Beyond his pleading and proof argument, which we have addressed ante, defendant argues the trial court‘s reliance on facts “beyond the record of conviction” was error, contending that the court should not have looked at our prior opinion to determine whether the facts showed he was ineligible because he intended to inflict great bodily injury. He contends that if the face of the judgment does not reflect a disqualifying factor, the time to consider the underlying facts would be at the next step contemplated by the Act, the hearing tо determine whether defendant is dangerous. We disagree.
Under the three strikes law generally, a trial court may look to the whole record of a prior conviction to determine whether the facts meet the definition of a strike, including looking to a prior appellate decision. (People v. Woodell (1998) 17 Cal.4th 448, 454–457 [71 Cal.Rptr.2d 241, 950 P.2d 85] (Woodell) [foreign state appellate opinion used to show defendant‘s prior conviction qualified as a strike under Cal. law because it showed he personally usеd a deadly weapon]; see also 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 246, p. 1112.) We see no reason why Proposition 36 would change this rule. (See Couzens & Bigelow, supra, p. 38 [“It is likely the court could consider any documentary evidence that is part of the ‘record of conviction:’ ‘those record documents reliably reflecting the facts of the offense for which the defendant has been convicted’ “].)5
If the prior opinion does not sufficiently establish the facts, “the defendant, who suffered the conviction and took the appeal, would know of and be able to challenge any material flaws or omissions in the opinion.” (Woodell, supra, 17 Cal.4th at p. 457.) Although defendant has indicated he wants to air those facts at a hearing on future dangerousness, and claims he was denied a hearing to contest the trial court‘s interpretation of the facts, he makes no claim that our prior opinion misstated them. In such circumstances, we see no reason why the trial court‘s use of our prior opinion to determine the facts was improper.
To the extent our prior appellate opinion may be viewed as “hearsay,” it is still admissible in the context of a Proposition 36 eligibility review. Reliable hearsay is deemed sufficient for purposes of revoking probation or parole, somewhat analogous proceedings where a defendant‘s due process rights are less than those at the initial criminal proceeding. (See In re Miller (2006) 145 Cal.App.4th 1228, 1234–1235 [52 Cal.Rptr.3d 256] [parole revocation hearing]; People v. Brown (1989) 215 Cal.App.3d 452, 454 [263 Cal.Rptr. 391] [probation revocation hearing]; see also People v. O‘Connell (2003) 107 Cal.App.4th 1062, 1065–1067 [132 Cal.Rptr.2d 665] [deferred entry of judgment revocation].) If defendant had thought the facts stated in our prior opinion were materially inaccurate, he had the remedy of petitioning for a rehearing. “[I]f a party disagrees with the Court of Appeal‘s selection of the material facts or identification of the applicable law, the party can petition for a rehearing and point out the deficiencies in the court‘s opinion.” (People v. Garcia (2002) 97 Cal.App.4th 847, 854–855 [118 Cal.Rptr.2d 662]; see Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1000, fn. 2 [111 Cal.Rptr.2d 564, 30 P.3d 57] [Supreme Court‘s policy is to decline to review facts of appellate court decision if no petition for rehearing challenging the
II
Sufficiency of the Evidence from Prior Opinion
Defendant contends our prior opinion does not adequately establish that he intended to inflict great bodily injury on his victim. He acknowledges the opinion describes facts supporting spousal abuse, but contends they lack “specificity” to show an intent to inflict great bodily injury. We disagree.
Defendant acknowledges we review the factual basis of the trial court‘s finding under the familiar sufficiency of the evidence standard. “We review the whole record in a light most favorable to the [order] to determine whether it contаins substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859 [123 Cal.Rptr.2d 193]; see People v. Barnes (1986) 42 Cal.3d 284, 303–304 [228 Cal.Rptr. 228, 721 P.2d 110].)
The trial court summarized our prior opinion and found the facts reflected an intent to commit great bodily injury. Substantial evidence supports that finding.
The jury heard evidence that on May 12, 1994, defendant took his wife to the hospital for a broken nose. Although the victim told an experienced emergency room nurse that defendant accidentally hit her with his elbow while they were in bed, the nurse did not believe the fracture was accidental, but was caused by a closed fist or other object. The nurse also observed the victim had a bruised chin, swollen lip, and had red fingerprints on her neck. Other bruises on the victim appeared to be of different ages. After the nurse had defendant leave the room, she asked if defendant had beaten her and the victim eventually admitted he had, but then said she would deny it. Officers who arrested defendant that night also saw the victim‘s injuries.
The trial court also stated that evidence of prior violence by defendant was introduced under
“Cathy McCain and Deputy Sheriff Robert Davenport testified about the incident in Nevada City. McCain was in her front yard when she saw a man in a car strike a woman with his full weight. After he hit her about six times, McCain yelled for him to stop. She had her boyfriend block the dead-end street and called the police. The man she saw hitting the woman was defendant.
“Deputy Davenport was dispatched to the scene. Both of Mrs. Guilford‘s eyes were bruised, hеr cheeks were red, and there was a bruise on her chin. She told the officer she had fallen in Sacramento and denied defendant hit her. When Davenport said defendant admitted slapping her, she admitted it, but said he did not mean to. She maintained her injuries were the result of a fall. Photographs of her injuries were admitted at trial. Defendant told the officer he hit his wife just three times. When asked why, defendant responded, ‘no reason.’ ” (People v. Guilford (Oct. 30, 1996, C019691) [nonpub. opn.].)
Based on this evidence, the trial court could rationally have found that defendant intended to inflict great bodily injury when he punched his wife in the nose.
III
Right to a Jury Trial
Defendant contends he is entitled to a jury trial under the Sixth Amendment as to whether he is eligible for resentencing under the Act.
This contention already has been resolved against defendant. “[T]he United States Supreme Court has already concluded that its opinions regarding a defendant‘s Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt do not apрly to limits on downward sentence modifications due to intervening laws.” (Kaulick, supra, 215 Cal.App.4th at p. 1304; see Dillon v. United States (2010) 560 U.S. 817, 828–829 [177 L.Ed.2d 271, 285, 130 S.Ct. 2683].)
Contrary to defendant‘s view, nothing in Alleyne v. United States (2013) 570 U.S. 99 [186 L.Ed.2d 314, 133 S.Ct. 2151] assists him. As described by our Supreme Court, in Alleyne, “the United States Supreme Court held that the federal Constitution‘s Sixth Amendment entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt standard of proof, as to ‘any fact that increases the mandatory minimum’ sentence for a crime.” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 39, fn. 6 [158 Cal.Rptr.3d 585, 302 P.3d 981].) The denial of a recall petition does not increase the mandatory minimum sentence for a defendant‘s crime.6
DISPOSITION
The order denying the recall petition under the Act is affirmed.
Butz, Acting P. J., and Hoch, J., concurred.
A petition for a rehearing was denied September 2, 2014, and the opinion was modified to read as printed above. Appellant‘s petition for review by the Supreme Court was denied October 15, 2014, S221092.